Gay marriage ban to face court test

Federal judge rejects arguments from Pennsylvania, sets course for landmark trial early next year

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Pennsylvania's ban on gay marriage is fair game for a federal court challenge, a judge decided Friday, in a 10-page order that sets the stage for a landmark trial that could come early next year.

U.S. District Judge John E. Jones III repudiated the state's argument that a 1972 decision put the issue off limits for federal jurists, and denied a series of motions to dismiss the challenge. The state may appeal that order, but advocates for same-sex marriage said the judge's decision was not likely to be overturned. That means the case would proceed into discovery, potential further motions and then a prompt trial.

"We will be pushing for a trial probably in March or April because there are thousands of loving, committed couples in Pennsylvania that are being harmed every day because of this discriminatory law," said Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, which is helping to represent the plaintiffs in the case.

The judge's order is narrow, and "is absolutely not on the merits," countered Joshua Maus, press secretary for the Governor's Office of General Counsel. "Even with his ruling, a fair opportunity will be given to present a defense of the law."

In July, 10 gay couples and one widow, led by Deb and Susan Whitewood of Bridgeville, sued to overturn the state's Defense of Marriage Act, which defines marriage as between a man and a woman. They sued in federal court because they claimed their rights to equal protection under the law were violated.

Judge Jones' order rejected motions to dismiss that were filed by state Secretary of Health Michael Wolf, state Secretary of Revenue Dan Meuser and Bucks County Register of Wills Donald Petrille.

The state officials had argued that the federal court had no jurisdiction to rule over the state's act. They cited a one-sentence U.S. Supreme Court utterance in the 1972 case Baker v. Nelson, in which the top court found that a Minnesota couple's thwarted bid to wed was not "a substantial federal question."

"The Supreme Court has decided several cases since Baker which demonstrate that it no longer views constitutional challenges based on sex or sexual identity classifications as unsubstantial," Judge Jones wrote. "Finally, in June of this year, the Supreme Court held that a federal statute defining marriage as only between heterosexual couples violated the equal protection and due process rights of same-sex couples who had married in states where same-sex marriage is legally recognized."

That case, Windsor v. U.S., was decided weeks before the Whitewoods and others filed their challenge to the state's ban.

While Judge Jones didn't deny that Baker was a relevant precedent, he found that there had been a "sea change" in the law since 1972 -- language that augurs well for the plaintiffs, their attorneys said.

"This is an area in which both public opinion and the state of the law are changing very rapidly," said Dylan Steinberg, an attorney with the Philadelphia law firm Hangley Aronchick Segal Pudlin & Schiller, which has joined the ACLU in representing the plaintiffs. "We think Pennsylvania needs to come up to speed with the other states in the Northeast and in other places where same-sex marriage is allowed."

Mr. Maus said the state may appeal the judge's order.

"We believe that the United States [Supreme Court] decision on Baker compels all lower courts to follow that," said Mr. Maus. "Recent courts, on nearly identical issues, have followed the Baker decision."

Mr. Petrille was sued because his office refused to issue marriage licenses to gay couples, and he argued that scores of other registers of wills would have done the same under DOMA. Judge Jones ruled that the case could proceed without joining more county officials.

Gov. Tom Corbett was originally a defendant. He was released in favor of the two secretaries, who are responsible for taxation and death certificates -- areas in which, the plaintiffs claim, gay relationships are not recognized. Attorney General Kathleen Kane was dismissed after she refused to defend DOMA.

Judge Jones has scheduled a status conference for Friday at which he could set a discovery schedule and trial date. The defense could still file motions for summary judgment in an effort to gut the case between discovery and trial.

The trial would hinge on whether there's any compelling state interest in barring gays from marrying.